Thursday, May 17, 2007

The “Public Consultations and Awareness Campaign on Political Reform in Ukraine” project, being implemented by ICPS and the Center for Ukrainian Reform Education (CURE) with financial support from the Westminster Foundation for Democracy (WFD), is summing up preliminary results. Source: Ukrainian JournalOver the first quarter of 2007, public consultations were held in five cities: Lutsk, Dnipropetrovsk, Simferopol, Mykolayiv, and Chernivtsi. Recently, two booklets were published: “Political Reform as Seen by the Public” and “Political Reform as Seen by the Government”

Ukraine’s 1996 Constitution gave the President the greatest powers and the least accountability compared with other government bodies. The political reform should have increased both the accountability and responsibility of the government to voters and, in such a manner, have brought Ukraine closer to European standards. A Law amending the Constitution was adopted on 8 December 2004 and came into force in 2006. Instead of optimizing the system of checks and balances, however, this political reform complicated relations among and within the various branches of government.A review of reform, such as it was

The role of the President

Before the 2004 reforms, the President was able to appoint and dismiss the majority of top government officials and was de facto the Head of Government, holding the majority of political powers that normally would go to a Premier. By not signing into law the bills adopted by the Verkhovna Rada, the President could actually block the adoption of any law. At the same time, the President took no responsibility for actions of the Government.

After the Constitutional reforms, the right to form a Government was largely transferred to the Verkhovna Rada. A close political relationship was established between the legislature and the Cabinet: the Rada majority now had to form a coalition, which, in turn, formed a Government. Thus, the Government became the main executive body. The President continued to be the guarantor of the Constitution and to be responsible for foreign and security policy.

The Verkhovna Rada majority

Before the reform, the Constitution did not require that there be a standing majority in the legislature. And indeed, the Rada often operated on the basis of a strictly situational majority.

Since 2006, the Verkhovna Rada is obligated to establish a majority that forms the Government, supports its activity and is responsible for its actions. If such a majority is not set up within 30 days, the President has the right to dissolve the legislature.

Appointing and dismissing the Premier

Before, the Premier was appointed by the President, for which the President needed the rubber stamp of a Verkhovna Rada majority. The Premier could also be dismissed at any time by the President, which happened with great frequency, or by the Verkhovna Rada—but only if it failed to approve that Government’s yearly Program. In practice, the President was the main figure making or breaking the Premier.

Now, the Verkhovna Rada must establish a coalition of factions that nominates a candidate for Premier and submits this nomination to the President. The President must return this nomination to the Verkhovna Rada for final approval within 15 days. Only the Verkhovna Rada can dismiss the Premier. The President can now only submit a proposal to the Verkhovna Rada calling for the Premier to be dismissed.

Appointing and dismissing the Government

Previously, the President appointed and dismissed ministers at suggestion of the Premier. However, because the Head of Government himself could always be dismissed by the President, these nominations were largely a formality.

Now, the Premier proposes appointments and dismissals that are the approved by the Verkhovna Rada coalition. There are two exceptions: the Minister of Foreign Affairs and the Minister of Defense, whose nominations are submitted to the Verkhovna Rada by the President.

Appointing and dismissing other top officials

Before, the President appointed and dismissed governors of local state administrations and the majority of top officials of central government bodies at the request of the Premier. But this was frequently a mere formality. To appoint and dismiss Chairs of the Anti-Monopoly Committee, State Property Fund and State Radio and Television Committee, the President needed the consent of the Verkhovna Rada.

The procedure for appointing and dismissing governors of local state administrations has not changed: the President does this at the request of the Cabinet. But the Chairs of the Anti-Monopoly Committee, State Property Fund and State Radio and Television Committee are appointed by the Verkhovna Rada at the request of the Premier.

The President’s right to cancel resolutions by other government bodies

Previously, the President could cancel resolutions issued by the Cabinet or by the Crimean Council of Ministers. The President could also veto bills adopted by the Verkhovna Rada. In fact, the President frequently did not sign into law those bills whose veto the Verkhovna Rada had even overridden—which made these laws null and void.

Now, the President can only suspend the enactment of a Cabinet resolution, if he thinks it is unconstitutional. Moreover, the President must simultaneously submit the specific resolution to the Constitutional Court for a ruling. The President can still overrule resolutions issued by the Crimean Council of Ministers.

The President can also veto bills adopted by the Verkhovna Rada. However, if the President refuses to sign into law a bill whose veto has been overturned by a two-thirds vote, that bill can be signed and published by the Verkhovna Rada Speaker instead.

Dissolving the Verkhovna Rada

Before, the President had no specific power to dissolve the Verkhovna Rada.

Now, the President has the right to dissolve the Verkhovna Rada, if a coalition has not been set up within 30 days or if a new Cabinet has not been formed within 60 days of the dismissal of the previous Government.

Original idea of reform stillborn

The initiators of political reform had as their main objective expanding powers of the Verkhovna Rada and the Cabinet by shifting Presidential powers. They took as their example the model of a “parliamentary” republic, where the Government is formed by the legislature, while the President plays a secondary role and is actually appointed by the legislature.

However, fierce political competition prevented that initial plan from being implemented. The President has remained a strong political figure: the Head of State is still elected through a national election and has considerable power over both the Cabinet and the Verkhovna Rada.

The model of government that Ukraine has as a result of political reform in 2004 does not resemble most of its European counterparts. It has more in common with a fairly eccentric “semi-presidential” model. Among developed European democracies, only France has established somewhat similar relations among the Government, the President and the legislature.

The main reasons why political reform failed include:

1) Lack of institutions that guarantee democratic rights and freedoms in Ukraine. The government machine is used as an administrative resource in political competition, the Constitution Court has proved ineffective, the judicial system does offer proper justice, the rights of the opposition are not enshrined in law, the organization of political parties fails to meet democratic standards, and the instruments for civil society to influence government exist only on paper.

2) Flawed legislation. The amended Constitution still has many holes that various political players have begun to interpret to their own liking.

3) Undemocratic, untransparent political parties. The elimination of the majority system has hidden the human face of individual elected representatives behind a party brand. In voting for a party list, voters essentially choose a “black box” and after an election are soon disappointed with their own choice. The personal responsibility of every elected official to a specific electorate has disappeared. Moreover, young, innovative candidates stand little chance against the old political horses who are inevitably first on party lists.

4) Lack of party identity. In Ukraine, there are no party ideologies that are based on European values and reflect the ideological and political attitudes of a specific part of the population. Slogans like “This party represents the entire nation” are just a tactic to get elected.

Government decisions should not be made in a vacuum

The hastily adopted Constitutional amendments showed themselves for what they were the minute the President and Premier represented different political camps. Yet, in a parliamentary-presidential system, the President and Premier are forced to cooperate, even to cohabitate, when the President and Government represent political forces that are in opposition to each other.

In short, Ukraine’s political forces should begin now to work on fixing the Constitution of Ukraine in order to establish an effective system of checks and balances. Moreover, decision-making should not be in isolation from voters. Procedures for holding public consultations both at the national and at the local levels need to be entrenched in law.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.